Some argue that there is not enough time to have a referendum on the terms of Brexit before we are due to leave. London4Europe Committee member and former Home Office senior civil servant Michael Romberg looks at the necessary steps and concludes that there is enough time. However, it would be much better if MPs legislated now to set up the referendum rather than wait until the Meaningful Vote.

On 30 April 2018 the House of Lords voted on an amendment calling for a referendum on the terms of Brexit. Although 40+ Labour peers supported the amendment, Labour collectively abstained and as a result the Government was able to defeat the amendment. Other legislation coming up might provide another chance. There will definitely be another opportunity at the time of the meaningful vote in about November 2018.

Is there enough time?

Some Leavers hold, and some Remainers fear, that there will not be enough time to hold the referendum on the terms.

Legislation can be passed in a day. But rushed legislation is bad legislation. Campaigners could make the process simpler by minimising changes since the 2016 referendum. Irrespective of the anyway rather poor arguments for changing the franchise, a Remain victory on a new franchise would lead to an immediate sense of grievance amongst Leave voters and pave the way for a further vote. So it would be better to keep the Bill simple by using the Parliamentary franchise as in 2016, and pass it quickly.

The one bit of the Bill that needs real thought is the referendum question. The Bill could say that the task of the referendum is to offer a choice between Leaving the EU on the agreed terms or Remain; and that the exact wording of the question should be settled later by Parliament following the advice of the Electoral Commission. That would mean that the law was in place quickly and everyone could get on with the necessary work.

Set the date

The main Act could set the date. In 2016 there was a 4 month period between setting the date and referendum day. The Electoral Commission subsequently said that 6 months would be better. The shorter the period the less time for good administration, including communicating the rules to campaigners, and for the public to engage.

Framing the Question

The Electoral Commission takes 12 weeks to get the question right, based on extensive research with members of the public. That period can be compressed, but at some point acceleration will impact on the fairness and robustness of the question.

However, almost all pre-referendum activity can go on without the exact wording being known. So there is scope for parallel running.

Campaigning

In 2016 there was a ten week campaign period preceded by a 6 week period for the choice of the designated lead campaigner. The minimum period set out in law is ten weeks including six weeks for designation.

Administration

The Electoral Commission needs about 6 weeks to sort out the administration.

Putting the time-table together

The Meaningful Vote is expected to be in November 2018, and legislative amendments to the EU (Withdrawal) Bill are intended to require the Vote to take place then at the latest.

It would then be possible to pass the legislation (apart from the exact wording of the question) in December 2018.

That would allow 11 weeks in the new year before a vote on 21 March 2019. Time enough for campaigning, designation as lead campaigner and administration to be sorted out – work would start in December after all. No Christmas break for some.

It would also allow enough time for the question to be settled by mid February if the Electoral Commission compressed the time-table and started work in December.

However, the European Parliament elections are to be held 23-26 May 2019. It would be awkward for Brexit not to have been resolved by well before the time campaigning starts because some of the UK’s seats have been re-allocated. If the election took place on the new seat allocations plus the UK’s seats, the total number of MEPs would go over the limit set by treaty. Asking the European Parliament to delay the vote beyond June would run into treaty-based restrictions. Asking them to use the old allocation of seats would also be a big request.

It is possible to pass a “paving bill” quickly that allows expenditure on preparatory work to be undertaken in advance of the passage of the main law. But with contentious legislation that brings its own problems of Parliamentary time and handling.

It may also be possible to undertake the most time-critical implementation work – the Electoral Commission’s study into the exact wording and its guidance on designation as lead campaigner – once the Bill has passed second reading by relying on limited provisions in HM Treasury’s New Services rules.

Conclusion

There is the possibility of extending the Article 50 time-table, but conflict with the timing and structure of the European Parliament elections make that difficult. So one should assume that the referendum would have to be held before 29 March 2019; Thursday 21 March 2019 would be the date to mark in your diary.

There will be enough time to hold a referendum before the planned Brexit day if a decision to do so is taken at the Meaningful Vote in November 2018. The time-table would have to be compressed, which brings risks.

So, while a decision could be taken in November, it would be better to take it now. Not only would that lead to a more orderly process, but it would increase public engagement with the Brexit process if voters knew that they would have to take a decision.

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